IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MARIE HARTEY, ET AL. :

 : CIVIL ACTION

:

v. :

: NO. 04-CV-5111

:

ETHICON, INC. :

SURRICK, J. MARCH 20, 2006

MEMORANDUM & ORDER

Presently before the Court, is Defendant’s Motion For Summary Judgment (Doc. No. 21). 

For the following reasons, we will grant Defendant’s Motion.

I. BACKGROUND

In December 1999, Plaintiff Marie Hartey suffered from urinary incontinence and

difficulty with bowel movements. On or about December 20, 1999, Hartey underwent extensive

reconstructive surgery performed by Marvin Grody, M.D., at Temple University Hospital. 

Mersilene mesh, a medical device manufactured and distributed by Defendant Ethicon, Inc.

(“Ethicon”), was used during the surgery. (First Am. Compl., Doc. No. 16 ¶ 7.) In the months

following the surgery, Hartey suffered several complications, including numerous bladder and

urinary tract infections and increased bladder incontinence. On June 20, 2000, Hartey underwent

additional surgery, at which time massive scarring and an injury to her ureter were discovered. 

(Id. ¶¶ 8-10.) Hartey learned that the scarring was secondary to the use of Mersilene mesh. She

has continued medical treatment for her problems. (Id. ¶¶ 11-12.)

On March 1, 2002, Hartey and her husband, Earle Harris, filed a complaint with the Court

of Common Pleas for Philadelphia County, alleging negligence on the part of Dr. Grody, Temple

Case 2:04-cv-05111-RBS Document 26 Filed 03/21/06 Page 1 of 12
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University Hospital, and two other defendant doctors (“Grody Litigation”). See Hartey v. Grody,

No. 011202612 (Pa. Ct. of Com. Pl. filed Dec. 18, 2001). That case settled in January 2004. On

September 28, 2004, Hartey and her husband initiated an action in the Court of Common Pleas

for Philadelphia County against Ethicon and Johnson & Johnson Inc. Defendants removed that

action to this Court. The claims against Johnson & Johnson Inc. were subsequently dismissed. 

(Doc. No. 8.) In their First Amended Complaint (“Complaint”), Plaintiffs allege that Ethicon

was negligent in the design and manufacture of Mersilene mesh, and that Ethicon breached an

express warranty regarding the safety of the mesh. (Doc. No. 16.) 

Defendant Ethicon has moved for summary judgment, claiming that Plaintiffs’ claims are

barred by the applicable statutes of limitations. 

II. LEGAL STANDARD

Summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment as a

matter of law.” Fed. R. Civ. P. 56(c). A genuine issue of material fact exists only when “the

evidence is such that a reasonable jury could return a verdict for the non-moving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party moving for summary

judgment bears the initial burden of demonstrating that there are no facts supporting the

nonmoving party’s legal position. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). Once

the moving party carries this initial burden, the nonmoving party must set forth specific facts

showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); see also Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (explaining that the nonmoving party

Case 2:04-cv-05111-RBS Document 26 Filed 03/21/06 Page 2 of 12
 In a diversity case such as this, the district court must determine which state’s

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substantive law will govern. We agree with the parties that the substantive law of Pennsylvania

governs this case. 

3

“must do more than simply show that there is some metaphysical doubt as to the material facts”).

“The nonmoving party . . . ‘cannot rely merely upon bare assertions, conclusory allegations or

suspicion’ to support its claim.” Townes v. City of Phila., Civ. A. No. 00-CV-138, 2001 U.S.

Dist. LEXIS 6056, at *4 (E.D. Pa. May 11, 2001) (quoting Fireman’s Ins. Co. v. DeFresne, 676

F.2d 965, 969 (3d Cir. 1982)). Rather, the party opposing summary judgment must go beyond

the pleadings and present evidence through affidavits, depositions, or admissions on file to show

that there is a genuine issue for trial. Celotex, 477 U.S. at 324. When deciding a motion for

summary judgment, the court must view facts and inferences in the light most favorable to the

nonmoving party. Anderson, 477 U.S. at 255; Siegel Transfer, Inc. v. Carrier Express, Inc., 54

F.3d 1125, 1127 (3d Cir. 1995). However, we will not resolve factual disputes or make

credibility determinations. Siegel Transfer, Inc., 54 F.3d at 1127.

III. LEGAL ANALYSIS

A. Negligence Claim

In Pennsylvania, “an action to recover damages for injuries to the person or for the death

of an individual caused by the wrongful act or neglect or unlawful violence or negligence of

another” must be commenced within two years. 42 Pa. Cons. Stat. § 5524(2). “[L]imitations 1

periods are computed from the time that the cause of action accrued.” Fine v. Checcio, 870 A.2d

850, 857 (Pa. 2005) (citing 42 Pa. Cons. Stat. § 5502(a)). “[A] cause of action accrues when the

plaintiff could have first maintained the action to a successful conclusion.” Id. In a personal

injury suit, the right to sue arises when the injury is inflicted. Id. The purpose of the statute of

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limitations is to ensure that “the passage of time does not damage the defendant’s ability to

adequately defend against claims made.” Dalrymple v. Brown, 701 A.2d 164, 167 (Pa. 1997). 

The discovery rule provides an exception that tolls the running of the limitations period. 

Fine, 870 A.2d at 858. “The discovery rule provides that where the existence of the injury is not

known to the complaining party and such knowledge cannot reasonably be ascertained within the

prescribed statutory period, the limitations period does not begin to run until the discovery of the

injury is reasonably possible.” Dalrymple, 701 A.2d at 167. The Supreme Court of

Pennsylvania has emphasized that the discovery rule “is an equitable one,” and excludes that

period of time “during which the injured party is reasonably unaware that an injury has been

sustained so that people in that class have essentially the same rights as those who suffer an

immediately ascertainable injury.” Id. The rule “arises from the inability of the injured, despite

the exercise of due diligence, to know of the injury or its cause.” Pocono Int’l Raceway, Inc. v.

Pocono Produce, Inc., 468 A.2d 468, 471 (Pa. 1983). “The party seeking to invoke the discovery

rule bears the burden of establishing the inability to know of the injury despite the exercise of

reasonable diligence.” Dalrymple, 701 A.2d at 167. 

The Supreme Court of Pennsylvania has defined the reasonable diligence required under

the discovery rule, noting that it is not an absolute standard, “but is what is expected from a party

who has been given reason to inform himself of the facts upon which his right to recovery is

premised.” Fine, 870 A.2d at 858. The Court further observed:

There are very few facts which diligence cannot discover, but there must be some

reason to awaken inquiry and direct diligence in the channel in which it would be

successful. This is what is meant by reasonable diligence. Put another way, the

question in any given case is not, what did the plaintiff know of the injury done

him? But, what might he have known, by the use of the means of information

Case 2:04-cv-05111-RBS Document 26 Filed 03/21/06 Page 4 of 12
 We note that despite the fact that the Grody Litigation evidently proceeded to the 2

discovery and summary judgment stages before finally being settled, the parties have provided us

with little indication of what the record in that proceeding revealed regarding Hartey’s

knowledge about her alleged injuries from the Mersilene mesh, other than what was alleged in

the Grody Litigation complaint. 

5

within his reach, with the vigilance the law requires of him? . . . Under [the

objective reasonable diligence] test, a party’s actions are evaluated to determine

whether he exhibited those qualities of attention, knowledge, intelligence and

judgment which society requires of its members for the protection of their own

interest and the interest of others.

Id. (internal citations omitted). Ordinarily, the question of whether the plaintiff has exercised

reasonable diligence is a factual determination for the jury to decide. Id. “Where, however,

reasonable minds would not differ in finding that a party knew or should have known on the

exercise of reasonable diligence of his injury and its cause, the court determines that the

discovery rule does not apply as a matter of law.” Id. at 858-59. 

This action against Ethicon is a products liability suit, in which Plaintiffs argue that

Ethicon’s negligence in the design and manufacture of Mersilene mesh caused Hartey to suffer

“severe and permanent injuries,” including injury to her ureter and other internal organs. (Doc.

No. 16 ¶¶ 13, 18.) In support of its Motion, Ethicon contends that Hartey attributed at least some

of her injuries to the use of Mersilene mesh in her state court complaint in the Grody Litigation

filed on March 1, 2002. In that complaint, Plaintiffs state that in June 2000, Hartey learned that 2

massive scar tissue had formed and there was injury to her ureter. She subsequently learned that

this scarring was secondary to the use of Mersilene mesh. (Doc. No. 21 at Ex. A ¶¶ 30-31.) 

Ethicon takes the position that, at the very latest, the limitations period expired on March 1,

2004, two years after the date on which Plaintiffs filed the complaint in the Grody Litigation. 

Case 2:04-cv-05111-RBS Document 26 Filed 03/21/06 Page 5 of 12
 The identical statements are made in Plaintiffs’ amended Complaint filed against

3

Ethicon. (Doc. No. 16 ¶¶ 10-11.)

6

Plaintiffs respond that Defendant “misunderstands” the allegations in the Grody

Litigation complaint. Plaintiffs contend that scarring is not identified in that complaint as an

injury, and that scarring is in fact “an understood and accepted consequence of placing a foreign

substance such as Mersilene mesh inside one’s body, and the inevitable scarring serves a

beneficial purpose in allowing the mesh to properly attach to the natural tissue in the body.” 

(Doc. No. 24 at 3.) While this is a creative argument, it is not consistent with the pleadings in

the Grody Litigation. Paragraph 31 of the Grody Litigation complaint states in full: “Following

the [June 20, 2000] surgery [for an enlarged kidney], plaintiff Marie Hartey was advised that a

stitch had been placed in her ureter and that massive scar tissue had formed. Later still, plaintiff

learned that the scarring was secondary to the use of Mersilene mesh.” (Doc. No. 21 at Ex. A ¶

31) (emphasis added). Paragraph 63 of the Grody Litigation complaint states: “Prior to the 3

procedure of December 20, 1999, defendant Grody failed to advise plaintiff of the potential risks

and complications associated with that procedure, particularly with respect to the installation of

foreign material/bodies such as Mersilene mesh . . . .” (Id. ¶ 63.) It is evident from the pleadings

that neither Hartey nor her doctors considered the “massive scar tissue” that was caused by the

Mersilene mesh to be serving a beneficial purpose. It is undeniable that as of March 1, 2002,

Plaintiff knew that massive scarring was a risk or complication of the use of Mersilene mesh and

that Dr. Grody had used Mersilene mesh in the 1999 surgery. She knew that she was required to

undergo an additional surgical procedure in 2000 because of complications resulting from that

surgery. She also knew that she was continuing to have problems which required “continuing

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medical treatment” and which caused her to “endure excruciating pain.” This was sufficient to

“awaken inquiry and direct diligence in the channel in which it would be successful,” see Fine,

870 A.2d at 858, and to thus trigger the start of the limitations period. 

Plaintiffs also argue that the Mersilene mesh has caused a new injury, separate and

distinct from the injuries caused by the doctors’ negligence, thus tolling the statute of limitations. 

In their Response to the Motion for Summary Judgment, Plaintiffs allege that a cystoscopy

performed in August 2003 revealed the presence of lesions within Plaintiff’s bladder, which

Plaintiffs believe were caused by the Mersilene mesh which had migrated from the original

implantation site to her bladder. (Doc. No. 22 at 4.) Plaintiffs offer the affidavit of Marie Hartey

in support of this argument. In that affidavit Hartey claims that she learned, after the August

2003 cystoscopy and a subsequent operation, that “the lesions were caused due to the migration

of the Mersilene mesh from the implantation sight [sic].” (Doc. No. 22. at Ex. B.) 

A brief review of the caselaw persuades us that the alleged migration of the Mersilene

mesh is not a new injury for purposes of tolling the statute of limitations. The case of Shadle v.

Pearce, 430 A.2d 683 (Pa. Super. Ct. 1981), is illustrative. In Shadle, the plaintiff had been

diagnosed with bacterial endocarditis and consequently underwent an aortic valve transplant. 

The plaintiff learned at the time of the transplant that his condition had resulted from the

negligence of his dentist in failing to properly treat the plaintiff’s abscessed tooth. Id. at 684. 

Three years after the transplant surgery, the plaintiff developed an aortic aneurysm secondary to

the valve transplant. The defendant dentist in Shadle argued that the statute of limitations began

to run at the time of the transplant surgery, while the plaintiff maintained that the aneurysm was a

new injury, separate and distinct from the aortic valve problems. Id. at 685. The Superior Court

Case 2:04-cv-05111-RBS Document 26 Filed 03/21/06 Page 7 of 12
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of Pennsylvania held that the statute of limitations began to run at the time of the transplant

surgery. The court reasoned:

If we were to hold otherwise under the facts presented here, we would create a

concept in the law which would permit an injured plaintiff to have a new

limitations period commence for the initiation of an action for personal injuries as

of the date when each complication or change in condition arose, despite the fact

that no “new” negligence has occurred which is attributable to the defendant. 

Id. at 685-86. 

Similarly in Caldwell v. A.H. Robbins Company, 577 F. Supp. 796 (W.D. Pa. 1984), the

plaintiff was diagnosed with pelvic inflammatory disease (PID) in December 1977 and was

hospitalized. In January 1978, the plaintiff was advised that the PID was related to the presence

of a Dalkon Shield intra-uterine device (IUD) and the IUD was removed. On July 13, 1983, the

plaintiff filed a complaint alleging that in 1982 she suffered early onset menopause, and required

a hysterectomy with attendant procedures as a result of the IUD. The defendant manufacturer

raised the statute of limitations as a defense and the plaintiff responded that she was not aware of

these new problems until 1982. The court held that the plaintiff was “not entitled to a new

limitations period to begin with the appearance of each new surgery or complication.” Caldwell,

577 F. Supp. at 797. The court noted that “[t]he limitations period begins to run when damage is

inflicted which is ‘physically objective and ascertainable.’” Id. (quoting Ragan v. Steen, 331

A.2d 724 (Pa. Super. Ct. 1974)). The court also concluded that the plaintiff had not suffered

from a separate and distinct injury because her injuries were “sufficiently similar,” and thus

tolling the limitations period was not justified. Id. at 798 n.1.

Hartey states in her Complaint that after her surgery in December 1999, her doctors

discovered that her bladder was injured on account of the surgery, specifically, the placement of a

Case 2:04-cv-05111-RBS Document 26 Filed 03/21/06 Page 8 of 12
 Plaintiff’s Response To The Motion For Summary Judgment Of Defendant Ethicon, Inc. 4

(Doc. No. 22) and Plaintiff’s Response To Defendant’s Motion For Leave To File A Reply Brief

In Support Of Defendant’s Motion For Summary Judgment (Doc. No. 24) do not even mention

the express warranty claim. 

9

stitch in her ureter and the insertion of Mersilene mesh. Hartey was aware that massive scarring

was attributable to the Mersilene mesh in the area of her bladder as early as March 2002. The

lesions, which were observed as a result of the August 2003 hysterectomy, are simply an

extension of the complication that was observed in 2000. They do not constitute a separate and

distinct injury. Plaintiff’s knowledge of the complications from the Mersilene mesh triggered the

running of the statute of limitations, which thus expired in March 2004, well before Plaintiffs

filed the instant Complaint against Ethicon. 

Construing the facts in the record before us in a light most favorable to Plaintiffs, we

conclude that the lesions allegedly caused by the migration of the Mersilene mesh and allegedly

discovered in August 2003 by Hartey are not, for purposes of the discovery rule, a new and

separate injury, distinct from the scarring caused by the Mersilene mesh that Hartey was aware of

in 2002. Accordingly, we will grant Defendant Ethicon’s Motion for summary judgment with

respect to Plaintiffs’ claim for negligence. 

B. Breach of Warranty Claim

Ethicon also argues that Plaintiffs’ breach of warranty claim is barred by the statute of

limitations. In the Complaint, Plaintiffs contend that Ethicon expressly warranted that the 4

Mersilene mesh “was safe and suitable for use as a substitute for human tissue in certain types of

reconstructive surgery” and that the mesh failed to conform to these warranties. (Doc. No. 16 ¶¶

22-24.) 

Case 2:04-cv-05111-RBS Document 26 Filed 03/21/06 Page 9 of 12
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The statute of limitations for breach of warranty claims is four years, and this period is

applicable to breach of warranty claims for personal injury. 13 Pa. Cons. Stat. §§ 2725, 5525(2);

Williams v. W. Penn Power Co., 467 A.2d 811, 814 (Pa. 1983); Pitts v. N. Telecom, Inc., 24 F.

Supp. 2d 437, 443 (E.D. Pa. 1998). Although Plaintiffs’ Complaint appears to set out an express

warranty claim, we see no basis for such a claim. Nowhere in this record is there an indication

that Ethicon made express warranties to Hartey’s doctors or to Hartey, nor is there any indication

of what these express warranties might be. 

In any event, whether Plaintiffs make a claim for breach of an express warranty or breach

of implied warranties of merchantability or fitness for a particular purpose, these claims must fail

because the statute of limitations has run on these claims. “Warranty claims accrue on the date

that the seller tenders delivery of the goods.” Pitts, 24 F. Supp. 2d at 443. This is true “even if

the alleged breach is not apparent until after delivery has been tendered.” Hornberger v. Gen.

Motors Corp., 929 F. Supp. 884, 888 n.2 (E.D. Pa. 1996) (citing Nationwide Ins. Co. v. Gen.

Motors Corp., 624 A.2d 1172, 1174 (Pa. 1993)). Thus, Plaintiffs’ warranty claim accrued when

the Mersilene mesh was used in Hartey’s operation on December 20, 1999. Moreover, the

discovery rule does not apply in warranty actions except in certain unique circumstances which

the parties have not raised or discussed here. Pitts, 24 F. Supp. 2d at 443 (citing Northampton

County Area Cmty. Coll. v. Dow Chem., U.S.A., 566 A.2d 591, 599 (Pa. Super. Ct. 1989)); see

also O’Brien v. Eli Lilly & Co., 668 F.2d 704, 711 (3d Cir. 1981). Because Plaintiffs’ claim of

breach of warranty should have been filed no later than December 20, 2003, we conclude that

this present claim is barred by the statute of limitations. 

Case 2:04-cv-05111-RBS Document 26 Filed 03/21/06 Page 10 of 12
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C. Loss of Consortium

Plaintiff Harris claims a loss of consortium. “Under Pennsylvania law, a spouse’s right to

recover for loss of consortium derives only from the other spouse’s right to recover in tort.” 

Danas v. Chapman Ford Sales, Inc., 120 F. Supp. 2d 478, 489 (E.D. Pa. 2000); see also Little v.

Jarvis, 280 A.2d 617, 620 (Pa. Super. Ct. 1971). Because we have concluded that Hartey’s

claims are barred by the statute of limitations, Harris’s claim for loss of consortium will be

dismissed. 

An appropriate Order follows.

Case 2:04-cv-05111-RBS Document 26 Filed 03/21/06 Page 11 of 12
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MARIE HARTEY, ET AL. :

 : CIVIL ACTION

:

v. :

: NO. 04-CV-5111

:

ETHICON, INC. :

ORDER

AND NOW, this 20 day of March, 2006, upon consideration of Defendant’s Motion For th

Summary Judgment (Doc. No. 21), it is ORDERED that the Motion is GRANTED, and

judgment is entered in favor of Defendant Ethicon, Inc., and against Plaintiffs Marie Hartey and

Earle Harris.

IT IS SO ORDERED.

 

BY THE COURT:

S/ R. Barclay Surrick

_______________________

R. Barclay Surrick, Judge

Case 2:04-cv-05111-RBS Document 26 Filed 03/21/06 Page 12 of 12